United States District Court, D. Rhode Island
ROBERT H. SILVIA, Plaintiff,
PATRICIA COYNE-FAGUE, Defendant.
REPORT AND RECOMMENDATION
PATRICIA A. SULLIVAN, UNITED STATES MAGISTRATE JUDGE.
February 27, 2019, Plaintiff Robert H. Silvia filed a pro
se form complaint. ECF No. 1. Along with his complaint,
Plaintiff filed an Application to Proceed without Prepayment
of Fees and Affidavit (the “IFP Motion”), ECF No.
2, which has been referred to me for determination pursuant
to 28 U.S.C. § 636(b)(1)(A). Based on my review of the
IFP application and the prisoner trust fund account
statement, I conclude that Plaintiff has satisfied the
requirements of 28 U.S.C. § 1915(a)(1); accordingly, if
the complaint survives screening, I will grant the IFP motion
and calculate the initial filing fee that must be paid before
the case may proceed. However, because of the IFP
application, this case is subject to preliminary screening
under 28 U.S.C. § 1915(e)(2)(B).
legal standard for dismissing a complaint for failure to
state a claim pursuant to §§ 1915(e)(2) and 1915A
is the same used when ruling on a Fed.R.Civ.P. 12(b)(6)
motion to dismiss. Hodge v. Murphy, 808 F.Supp.2d
405, 408 (D.R.I. 2011). To survive a motion to dismiss, a
complaint must contain sufficient factual allegations to
“state a claim to relief that is plausible on its
face.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007)). “Threadbare recitals of the elements
of a cause of action, supported by mere conclusory
statements, do not suffice.” Iqbal, 556 U.S.
at 678. In addition, a viable complaint must satisfy
Fed.R.Civ.P. 8(a), which requires a plaintiff to include
“a short and plain statement of the grounds for the
court's jurisdiction . . . and of the claim showing that
the pleader is entitled to relief, ” as well as
Fed.R.Civ.P. 10(a-b), which requires a caption and claims set
out in numbered paragraphs, each limited to a single set of
circumstances. Federal district courts are limited to
exercising jurisdiction over cases that arise “under
the Constitution, laws, or treaties of the United States,
” 28 U.S.C. § 1331, and over cases between
citizens of different states where the amount in controversy
exceeds $75, 000, 28 U.S.C. § 1332(a).
complaint is exceedingly thin - he pleads simply that
Defendant is “violating religious rights of 21
inmates” and that he “would like an outcome so
that our Wicca/Pagan Group can have the same rights as other
religions and be protected under the law.” ECF No. 1 at
3-4. These allegations unquestionably implicate the Religious
Land Use and Institutionalized Persons Act
(“RLUIPA”), 42 U.S.C. § 2000cc, et
seq., which prohibits a state or local government from
taking any action that substantially burdens the religious
exercise of an institutionalized person unless the government
demonstrates that the action constitutes the least
restrictive means of furthering a compelling governmental
interest. Holt v. Hobbs, 135 S.Ct. 853, 859
(2015). There is also no question that religious exercise
under the Wicca/Pagan faith is likely entitled to “be
protected under the law” in that RLUIPA protections
have been held to extend to it. See, e.g.,
LaPlante v. Mass. Dep't of Corr., 89 F.Supp.3d
235, 241 (D. Mass. 2015); Nilsson v. Mass. Dep't of
Corr., Civil Action No. 09-40019-FDS, 2011 WL 1235474,
at *2 (D. Mass. 2011). However, at a minimum, an inmate
filing a suit under RLUIPA must allege: 1) that the
prison's actions implicate his religious exercise; and 2)
that the prison's actions substantially burden that
exercise. Holt, 135 S.Ct. at 862.
Plaintiff's complaint tells the Court nothing of the
religious exercise that Plaintiff contends he associates with
his religious belief system; more materially, it tells the
Court nothing of what Defendant has done to
“substantially burden” Plaintiff's religious
exercise. 42 U.S.C. § 2000cc-1(a). Nor does it contain
any statement regarding how Defendant's actions have
affected Plaintiff specifically, as opposed to Wiccan/Pagan
believers generally. See Vangel v. Aul, C.A. No.
15-43L, 2015 WL 5714850, at *4 (D.R.I. June 19, 2015),
adopted, 2015 WL 5714855, at *1 (D.R.I. Sept. 29,
2015). Accordingly, the complaint fails to clear the
Iqbal/Twombly bar and does not meet the basic
pleading requirements in Fed.R.Civ.P. 8(a)(2), which mandates
that a complaint must contain and short and plain statement
of the claim. Nevertheless, these deficiencies may be readily
cured by an amendment to the pleading that fills in the gaps.
That is, Plaintiff may well have a cognizable claim.
Therefore, I recommend that the Court afford Plaintiff leave
to file an amended complaint. If he fails to do so, or if the
amended pleading still fails to allege facts sufficient to
render his RLUIPA/First Amendment claim plausible, I
recommend that the case should be dismissed at screening for
failure to state a claim.
important aside: Plaintiff states that the religious rights
of twenty-one inmates at the Adult Correctional Institutions
(“ACI”), including his own, are being violated;
the complaint lists the names of affected inmates. ECF No. 1
at 3-4. Further, while the complaint names Plaintiff as the
only person bringing the suit, it represents that others are
“to [be] add[ed] later.” ECF No. 1, at 3.
Plaintiff is not an attorney, but is a pro se
litigant. Therefore, he may not represent or file motions on
behalf of other individuals. 28 U.S.C. § 1654 (“In
all courts of the United States the parties may plead and
conduct their own cases personally or by counsel as, by the
rules of such courts, respectively, are permitted to manage
and conduct causes therein.”); DRI LR Gen 205(a)(2)
(“[a]n individual appearing pro se may not represent
any other party”). “The federal courts have
consistently rejected attempts at third-party lay
representation. By law an individual may appear in federal
courts only pro se or through legal counsel.”
Bishop v. Correct Care Sols. LLC, 2:16-cv-00172-JAW,
2016 WL 3004625, at *2 (D. Me. May 24, 2016),
adopted, 2016 WL 3566201 (D. Me. June 24, 2016)
(citing Herrera-Venegas v. Sanchez-Rivera, 681 F.2d
41, 42 (1st Cir. 1982)); see Vangel, 2015 WL
5714850, at *2 n.3 (“As a pro se litigant,
Plaintiff may appear only on his own behalf.”).
Accordingly, Plaintiff's amended complaint may not
purport to represent the interests of other inmates. The
other inmates remain free, of course, to bring their own
on the foregoing, I recommend that Plaintiff be afforded
leave to amend within thirty days of the Court's adoption
of my report and recommendation. See 28 U.S.C.
§§ 1915(e)(2), 1915A. If Plaintiff opts not to file
an amended complaint within that time period, or if his
amended complaint fails to cure the deficiencies identified
above, I recommend that the case be dismissed for failure to
state a claim.
objection to this report and recommendation must be specific
and must be served and filed with the Clerk of the Court
within fourteen (14) days after its service on the objecting
party. See Fed.R.Civ.P. 72(b)(2); DRI LR Cv 72(d).
Failure to file specific objections in a timely manner
constitutes waiver of the right to review by the district
judge and the right to appeal the Court's decision.
See United States v. Lugo Guerrero, 524 F.3d 5, 14
(1st Cir. 2008); Park Motor Mart, Inc. v. Ford Motor
Co., 616 F.2d 603, 605 (1st Cir. 1980).
 Plaintiff also filed a motion for
appointment of counsel. ECF No. 3. Based on my recommendation
that Plaintiff's complaint as presently constituted fails
to survive screening but must be amended to stay alive, I am
denying without prejudice his motion to appoint counsel in a
separate text order.
 Plaintiff's civil cover sheet
invokes 42 U.S.C. § 1983, presumably in relation to a
claim based on a First Amendment deprivation. ECF No. 1-1 at
1 & 2. Cases dealing with a burden on religious exercise
often reference both RLUIPA and the First Amendment through
§ 1983. See, e.g., Harris v. Wall, 217
F.Supp.3d 541, 546 & n.3 (D.R.I. 2016); Vangel v.
Aul, C.A. No. 15-43L, 2015 WL 5714850, at *2 ...